IPSO set up to fail even more dismally than its predecessor – Jonathan Coad

13102015

The PCC was belatedly consigned to the dustbin of history when it was finally so obvious that it was a failed regulator (as was always its purpose) that even the press finally had to admit it. From that point the press will have begun the process of replacing it with an entity which was as institutionally bound to fail as its predecessor – ideally with a cloak of respectability derived from hiring high profile individuals who would then be prepared for a healthy salary to participate in the same confidence trick that comprised the PCC.

That underlying purpose of IPSO is readily discernible both its founding regulations [pdf] (i.e. the rules that the press have created by which its regulator must abide) and IPSO’s actions to date based on those regulations. It must therefore be as obvious to its Chairman, Sir Alan Moses and its Chief Executive, Mr Matt Tee, as it is to the rest of us.

The Editors’ Code undermined by IPSO’s founding regulations

Back in the days of the PCC, the Editors’ Code of Practice made the following defining stipulation in its opening paragraphs;

“Any publication judged to have breached the Code must publish the adjudication in full and with due prominence agreed with the Commission’s Director, including headline reference to the PCC.” (emphasis added)

This stipulation was the inevitable corollary of paragraph 1(ii) of the Code;

“A significant inaccuracy, misleading statement or distortion once recognised must be corrected, promptly and with due prominence, and – where appropriate – an apology published.” (emphasis acceded)

The press made no secret of its dislike at having to publish adjudications against it – admission of fault being an anathema to the infallible behemoths that control it; albeit that adverse adjudications were rare because of the PCC’s gross bias in favour of its regulated industry which was most clearly illustrated by its ludicrous rulings on prominence.

The Editors’ Code of Practice is now policed by IPSO. But this policing is subject to its founding regulations. Paragraph 22 of this founding regulations [pdf] significantly moves the goalposts on this issue in a way which is yet more deferentially generous to the press;

“if a complaint is upheld by the Complaints Committee…., remedial action shall, save as otherwise provided in this clause, consist of a requirement for the [newspaper] to publish a correction and/or an Adjudication, unless the Complaint Committee at its discretion dispenses with such requirement.” (emphasis added)

So it is that under the new supposedly strengthened regime at IPSO, whereas its predecessor determined that adjudications of its regulator should always be published by the press, the new regulator robs the entitlement of both complainant and the general public to read the adjudication in the pages of the offending paper. It can only ever be in the interests of the press for an adverse adjudication not to be published. ISPO’s members have already proved themselves impervious to the need to prioritise public interest over the determination of the press to have its blushes spared.

It is impossible to conceive of there being any public interest that could be served by an adjudication by IPSO of a serious inaccuracy on the part of a newspaper by it not being drawn to the attention of the general public by its publication in that newspaper. In the recent case of the Telegraph’s false allegation of anti-Semitism of the Leader of the Opposition, that error was egregious and culpable – and despite it, the Telegraph refused to admit its fault. Despite this the Telegraph was not obliged to publish the IPSO adjudication; an obligation which it would have had to fulfil even under the discredited PCC regime.

How could any genuinely independent regulator come to such a conclusion concerning a false and grotesque front page allegation of anti-Semitism against a possible future leader of this country? The public interest obviously and overwhelmingly favoured ensuring that at least as many people were disabused of that false allegation by the publication of the correction to as many voters and prospective voters as possible. But it is also in the public interest for readers to be able to see the adjudication when the newspaper was pleading not guilty, so they can take an informed view of the matter.

Proportionality ISPO style

The same paragraph (paragraph 22) of the Regulations also deals with the issue of prominence;

“the nature, extent and placement of such corrections and Adjudications will be determined by the Regulator acting proportionately and taking into account the nature of the [newspaper and the publication at issue].” (emphasis added)

Here then is another telling proof of the true orientation of IPSO. Account is to be taken (presumably) of the interests of the paper/publisher; no account apparently is to be taken either of the public interest or the interests of the complainant. IPSO has to date proved it to be the press’s loyal vassal in applying this stipulation.

This is a further retreat from the “due prominence” provision of the PCC Code, which at least hinted that there was an obligation on the publisher to correct itself in a manner which was appropriate to the circumstances. As has already been illustrated by Mr Tee’s perverse use of the term proportionality (see my post here), it has been adopted by IPSO as a justification for the prominence of corrections to be far less substantial than that of the offending publication.

What then can the term proportionality mean to the minds of Sir Alan Moses, Matt Tee, and their colleagues at IPSO?

Does it apply to the amount of people who will have read the original article? No; because splash front page articles are read by millions of people who would never see either a small insert on the front page, or any publication on any inside page.

Doesit apply to the editorial importance ascribed to the original article? No; because if that were the measure then if a decision is taken to publish some news with a certain prominence, the only proportionate way of correcting that publication would be with one of equivalent prominence.

Does it apply to a measure of prominence based on the equivalent value of the advertising space? No; because the prominence of the original article as measured in the value of the advertising space would require the correction with a prominence of equivalent value in terms of advertising space. That is not the practice of IPSO.

Does it apply to the public interest in disabusing a proportionate number of people to the number who were misled by the offending article? No; because on that basis the public interest demands that at least as many individuals who were misled by the offending article are then notified of the true facts.

Does it apply to the striking of a fair balance between the interests of the newspaper on the one hand, and both the general public and the complainant on the other? No; because IPSO invariably favours the interests of the newspaper by corrections being of lesser prominence than the offending original publication.

Does it apply to the importance of the democratic process being conducted in circumstances where voters are permitted to make their decisions on the basis of true rather than false facts? No; because when a false report on a constitutional issue such as Scottish independence appears on the front page of a newspaper IPSO would ensure that it was corrected in the same place.

Does it apply to informing newspaper purchasers of the extent of the commitment by the newspaper to comply with the PCC Code both by not publishing inaccuracies, and by being compliant with its obligation to correct them with “due prominence”? No; because if press consumers making their decisions by looking at newspaper front pages are not notified of earlier egregious front page errors, then they purchase their newspapers in ignorance of the true value of the publication.

IPSO not as bad as it predecessor – but actually worse

IPSO was sold to us as the regulator that would strike a fairer balance between the interests of the press and those of the public/complainant. It has however been given the power to waive (apparently at its whim – or rather that of the paper) the obligation which was set in stone in the PCC regime; to publish the adjudications of its regulator. It has now exercised that power on a matter of intense public interest to accommodate no other perceivable interest but that of the newspaper.

An online dictionary defines proportional as something which is; “properly related in size, degree, or other measurable characteristics; corresponding:”. The manner in which IPSO chooses to interpret this term is diametrically contradictory to the actual meaning of the word. This is precisely the calculated and gross intellectual dishonesty which defined PCC, and now has been fully adopted by its successor. IPSO has however been permitted even greater latitude than its predecessor to indulge the press and cover up its wrongdoing – a license to fail the general public which clearly intends to exploit to the full.

Jonathan Coad is a partner in the Media Brands and Technology Group at Lewis Silkin LLP and acts for both Claimants and Defendants.